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Investigating The President

Kendall's letter to Starr requesting advance copy of report

Text of the letter from President Bill Clinton's personal lawyer, David Kendall, to Independent Counsel Ken Starr and Deputy Independent Counsel Robert Bittman, requesting an advance copy of any report on the Lewinsky investigation their office may send to Congress:

Gentlemen:

Although I do not know whether recent media accounts that your Office is preparing a "report" to Congress pursuant to 28 U.S.C. 595(c) are accurate, I am writing to request that, if you are indeed contemplating such a "report", we be given a brief opportunity to review it before it is transmitted. We make this request to ensure that this first step in the most serious process contemplated by our Constitution is taken with due consideration for fundamental fairness.

This concern for fairness was shared by then-Chief Judge Sirica twenty-four years ago, when he was presented with a report of the Watergate grand jury. The Watergate Special Prosecutor asked that this report be transmitted to the Judiciary Committee of the House of Representatives, which was then conducting an impeachment investigation, and Judge Sirica did so, but only after carefully reviewing it and finding that President Nixon would not be prejudiced:

"The Report here at issue suffers from none of the objectionable qualities noted in Hammond and United Electrical [cited infra]. It draws no accusatory conclusions. ... It contains no recommendations, advice or statements that infringe an the prerogatives of other branches of government. ... It renders no moral or social judgments. The Report is a simple and straightforward compilation of information gathered by the Grand Jury, and no more. ... The Grand Jury has obviously taken care to assure that its Report contains no objectionable features, and has throughout acted in the interest of fairness."

In re. Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1226 (D.D.C. 1974)

Chief Judge Sirica's desire to ensure that the Watergate report was fair and, in particular, that it contained no recommendations, advice or judgments that would infringe on the prerogatives of the legislative branch parallels our concern that any transmission to the Congress comply with the requirements of 28 U.S.C. 595(c), that you advise the Congress only of any "substantial and credible information that may constitute grounds for an impeachment." Nothing in that statute authorizes your office to prepare a "report" to the House that purports to summarize and analyze evidence. One reason for this is constitutional. Article I, Section 3 of the Constitution provides that the "House of Representatives . . . shall have the sole Power of Impeachment," and this power cannot be delegated to the OIC. The Constitution's narrow, precise, explicit, and unambiguous assignment of the impeachment power to the House (as initiator) and Senate (as trier) indicates clearly that the Houses of Congress were each to exercise their respective impeachment powers independently and autonomously. Immigration and Naturalization Service v. Chadha 462 U.S. 919, 955 (1983). Indeed, in a case argued by the Independent Counsel himself, the Supreme Court ruled that the word "sole" in the Impeachment Clause was defined, inter alia, as "functioning . . . independently and without assistance. . . ." Nixon v. United States, 506 U.S. 224, 231 (1993).

Procedural fairness also dictates that your Office is not authorized to issue such a "report." Normally, a grand jury issues an indictment on the basis of probable cause, and the defendant is then entitled to a fair trial at which the defendant may obtain a not-guilty verdict, thus cleansing the defendant's reputation of the charge leveled in the indictment. While federal grand juries do have a rarely exercised "presentment" power to issue reports, this power has been frequently limited by the courts on fairness grounds. See, e.g., Application of United Electrical, Radio & Machine Workers of America, et. al., 111 F. Supp. 858 (S.D.N.Y. 1953); Hammond v. Brown 323 F. Supp. 326 (N.D. Ohio. aff'd 450 F. 2d 480 (6th Cir. 1971).

The independent counsel statute does authorize the OIC to file a "final report", 28 U.S.C. 594(h)(1)(B), describing the work of the office, and this report may be in the nature of a presentment, utilizing grand jury information under certain circumstances. Cf. In re North 16 F.3d 1234 (D.C. Cir. 1994). However, this report, or portions of it, may be released by the Special Division of the Court of Appeals only if certain conditions are met and procedural protections are taken. Primary among these conditions is the Special Division's obligation to "make such orders as are appropriate to protect, the rights of any individual named in such report. ..." 28 U.S.C. 594(h)(2). Special care is taken to assure fairness for individuals named in a final report. The Special Division may provide such individuals any portion of the draft report which the independent counsel has filed with the Division "for the purposes of receiving within a time limit set by the division of the court any comments or factual information that such individual may submit." Ibid. Those comments and factual information may be included by the Division "as an appendix to such final report." Ibid.

The legislative history of these reporting provisions and, most recently, the 1994 reenactment of the statute, make clear that Congress viewed the independent counsels' reporting obligations as "an important check on independent counsel investigative and prosecutorial activities by requiring them to identify and explain their actions." H.R. Conf. Rep. No. 103-511. at 19 (1994). Although Congress believed that these reports were necessary to compensate for the "unique environment" of no "direct and ongoing supervision by senior Justice Department officials" in which the independent counsel operated, Congress was also sharply aware of the potential abuse that the subjects of these reports might suffer at the hands of the independent counsel and intended that these reports not be used in such a fashion. Ibid. The Conference Report specifically found that "[t]he power to damage reputations in the final report is significant, and the conferees want to make clear that the final report is not intended in any way to authorize independent counsels to make public findings of conclusions that violate normal standards of due process, privacy, or simple fairness." Ibid.

If the OIC does decide to transmit to the House of Representatives not merely the "information" it has gathered but some form of "report" or summary containing any factual and legal analysis or conclusions, we believe that fundamental fairness dictates that we have the opportunity to review such a document and submit simultaneously any reply we wish to make. To that end, I request that you first allow the President's personal and White House counsel to review any draft "report" prepared by your Office ostensibly pursuant to 28 U.S. C. 595(c), affording us one week to submit a written reply, which would be submitted to the Chief Judge together with your draft document, for possible transmission to the House of Representatives.

You have had unlimited resources at your command and no practical restriction on your power to investigate every aspect of the President's life for the past four and one half years. Elemental fairness dictates that we be allowed to respond to any "report" you send to the House simultaneously with its transmission.

We would be amenable to any reasonable safeguards to protect the confidentiality of such a process. In late July, Bob and I discussed various issues relating to the impact of Rule 6(e), Fed. R. Crim. P., upon the evidence acquired by your investigation. At my behest, Bob agreed to state at the outset of the President's August 17, 1998, testimony that the proceeding was governed by Rule 6(e). If, therefore, you take the position that Rule 6(e) governs any "report" which you produce, this should present no barrier, since I invite you to join with us in seeking a Rule 6(e) order from the Chief Judge to allow us to review the draft "report" and file comments with it.

Sincerely,

David E. Kendall



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Thursday September 10, 1998

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